Legality of Warrantless Foreign Intelligence Surveillance Using Concealed Television Cameras and Beepers ( 1978 )

January 25, 1978
78-3 MEMORANDUM OPINION FOR THE
ATTORNEY GENERAL
Warrantless Foreign Intelligence Surveillance— Use
of Television— Beepers
This responds to your request for our opinion on the legality of warrantless
foreign intelligence surveillance using certain specific techniques: (1) television
surveillance; and (2) location detection using “ beepers.” We conclude that the
President may, in a proper case, invoke his constitutional powers to regulate
foreign affairs and thereby authorize such surveillance. He may delegate that
power to the Attorney General for case-by-case approval of such surveillance.
I. The Techniques Involved
The techniques discussed in this memorandum differ in technical term s, but
they share a feature that gives rise to the legal issue and constitutes a means
whereby the Government can surreptitiously obtain information without the
knowledge or consent o f the person being surveilled. The first technique in­
volves the use o f concealed television cameras to observe and/or record what
occurs in a particular place. In some instances the use o f such a camera without
the subject’s consent may be entirely lawful without the necessity of a warrant.
For exam ple, a concealed cam era might not require a warrant where it is in­
stalled to record only what a person who is present at the surveilled site and has
consented to the surveillance can see. W hen there has been no consent, or when
the cam era records sights not visible to a human eye, its use amounts to an
intrusion; the technique may not be utilized without a warrant or its constitu­
tional equivalent— invocation o f Presidential powers in a proper case. Cf.,
United States v. K IM , 415 F. Supp. 1252 (D. Ha. 1976) (warrant required for
observation using binoculars where unaided vision is impossible).
The second technique, use o f “ beepers,” involves installation o f an
electronic device on the chassis o f an automobile. The device emits a signal that
can be received within a half-m ile radius. By tracking the source of the signal,
the beeper’s location can be monitored. Installation o f the beeper can, in some
cases, be performed by affixation without intrusion into the car itself. In other
cases, “ technical trespass,” such as opening a hood or trunk, may be
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necessary. The use of beepers has been the subject o f much litigation. The law
is somewhat unsettled, but courts are in agreement that if installation o f the
device requires that the car be seized temporarily or a compartment opened, a
warrant is required. See, United States v. Holmes, 521 F. (2d) 859 (5th Cir.
1975); a f f d by an equally divided court, 537 F. (2d) 227 (5th Cir. 1976);
United States v. Pretzinger, 542 F. (2d) 517 (9th Cir. 1976); United States v.
Hufford, 539 F. (2d) 32 (9th Cir. 1976); and the cases discussed in Tracking
Katz: Beepers, Privacy, and the Fourth Amendment, 86 Yale L. J. 1461
(1977). A panel decision in the Fifth Circuit held that use o f the device,
regardless of the method of installation, required a warrant (H olm es, supra).II. Applicable Legal Considerations
Use of these techniques can raise Fourth Amendment issues, either because
of the surveillance itself or the method o f installation. While the issue is not
settled, the President can authorize warrantless electronic surveillance o f an
agent of a foreign power, pursuant to his constitutional power to gather foreign
intelligence. This Office has taken the position that the same constitutional
power authorizes limited physical entries and seizures incident to installation of
such devices. Office of Legal Counsel Memorandum for the Attorney General,
“ Physical Intrusion for Foreign Intelligence Purposes,” August 19, 1975. The
rationale o f that memorandum covers these surveillance techniques as well. It is
our opinion that the President has the power to authorize the warrantless
installation and use of these devices for the purpose o f gathering foreign
intelligence (or counterintelligence) in a proper case, and that he can also
authorize minimal trespasses or seizures incident to installation of the devices;
however, invocation of that power must be explicit.
III. Conclusion
The President can constitutionally authorize use o f television surveillance
and “ beepers” in certain narrow circumstances. He can also authorize those
minimal “ technical trespasses” and seizures incident to installation of these
devices.
Jo h n M . H arm on
Assistant Attorney General
Office o f Legal Counsel
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